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The Courtesy of Taking Immigration Opponents Seriously

Ben Domenech, the publisher/editor of the website The Federalist, also publishes a daily email newsletter (which is very, very good and has shaped my daily web diet) called The Transom. Unfortunately, Ben is very pro-immigration and is unhappy about Donald Trump’s candidacy, particularly because Donald thinks immigration is a problem in this country and wants to do something about both the level of legal immigration and the issue of out-of-control illegal immigration. In today's Transom, here is how Ben began his snarky piece on Trump and immigration:

Yesterday Future Greatest American President Donald Trump unveiled his first major policy white paper, concerning the only policy subject on which he has weighed in repeatedly: those damn dirty Mexicans. http://vlt.tc/21zj It is a perfect example of what Scott Adams has described as Trump’s clown genius ability to use intentional exaggeration to provide anchors for your brain, and persuade your subsconscious to think things you would never originally think. http://vlt.tc/21zy For instance, Trump’s plan involves the deportation of millions of people, the seizure of money sent back to Mexico by illegal immigrants, and an end to birthright citizenship. Nowhere in this white paper is the how of what Trump would do addressed. Not the massive new hiring of a force to displace millions of people; not the invasion of privacy necessary for the government to open every parcel sent to Mexico and investigate every wire transfer sent there or elsewhere lest the source be illegal; not the fact that ending birthright citizenship will require a Constitutional amendment. Trump’s white paper just says he will do it in three sentences, one of which is “End birthright citizenship.”
The understanding that children born here in America, even those born to non-Americans, are citizens dates back to the Founding generation, which was of course full of people who were not as wise as Mr. Trump. Those losers had no idea the sort of carnage their dumb ideas would unleash. Perhaps their own glorious triumph over the dirty brown people they encountered gave them false confidence about protecting our jobs.
It’s understandable given Trump’s identity politics play that he would continue on this line of thought – that terrible immigrants are destroying our economy, and terrible children of illegal immigrants are so burdening our social services that they, even as legal American citizens because of the stupid Constitution, must be deported along with their families. Of course, ending birthright citizenship would create European-style generational ghettos in American communities.

Believe it or not, Ben’s piece gets worse (now, 100% more snark!) – he continues by showing us a bunch of pictures of naturalized, birthright American citizens (e.g. Bobby Jindal and Marco Rubio, born to immigrant non-Americans, Trump’s sister because Donald and his sister had a Scottish mother – although with an American dad I don’t think the Trump kids’ citizenship is even in question) and essentially says to us ‘rubes’ who oppose current immigration policy – ‘see you fools, if you dare to change anything about our current immigration policy we won’t have Marco Rubio in the Senate or Bobby Jindal leading Louisiana or Donald Trump as the businessman/entrepreneur you love making America great!’

Well, first of all, let’s agree that both side engage in argument from anecdote (which my side in the immigration wars has fun with as well – look, here is Francisco Lopez-Sanchez, who was deported multiple times and was free to gun down an innocent woman only because San Francisco wouldn’t cooperate with federal authorities when those authorities asked the city to notify them when they planned to let Lopez-Sanchez out of jail.) I’d much rather take a broader, data driven look at the immigration question, which of course I think favors a serious re-think of our current policies, especially all the silly, simple happy talk about Hispanic family values given that Hispanics have an over 50% out-of-wedlock birthrate (a rate that has moved up, in the wrong direction, over the past 25 plus years.)

But this post isn’t even an anti-immigration rant full of data and studies in support of an immigration moratorium. Instead, I wanted to hone in on Ben’s particularly nasty allegations in his second paragraph – the idea that anyone who thinks birthright citizenship is a legal fiction not only disagrees with Ben but somehow disagrees with the Founders! How dare we! And how dare we question the idea that millions of unskilled Hispanic immigrants are anything but an unqualified good for native American unskilled workers. This is the kind of paragraph you’d find at the The Nation or The New Republic and quite frankly, is unworthy of Ben’s talents: what has gotten into him?

The Citizenship Clause of the Fourteenth Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."[1] As manifest by the conjunctive "and," the clause mandates citizenship to those who meet both of the constitutional prerequisites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.

The widely held, though erroneous, view today is that any person entering the territory of the United States-even for a short visit; even illegally-is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore "subject to the jurisdiction" of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire "subject to the jurisdiction" clause redundant. Anyone who is "born" in the United States is, under this interpretation, necessarily "subject to the jurisdiction" of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.[2]

The "subject to the jurisdiction" provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's parents, remained a citizen or subject of the parents' home country was not entitled to claim the birthright citizenship provided by the 1866 Act.

The jurisdiction clause of the Fourteenth Amendment is somewhat different from the jurisdiction clause of the 1866 Act, of course. The positively phrased "subject to the jurisdiction" of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act, one more in line with the modern understanding. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.

When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction, "[n]ot owing allegiance to anybody else."[4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[5] (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.[6]

The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court-by both the majority and the dissenting justices-in The Slaughter-House Cases.[7] The majority in that case correctly noted that the "main purpose" of the clause "was to establish the citizenship of the negro" and that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."[8] Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.[9]

Although the statement by the majority in Slaughter-House was dicta, the position regarding the "subject to the jurisdiction" language advanced there was subsequently adopted as holding by the Supreme Court in Elk v. Wilkins.[10] John Elk was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, renounced his former tribal allegiance, and claimed U.S. citizenship by virtue of the Citizenship Clause. This Court held that the claimant was not "subject to the jurisdiction" of the United States at birth, which required that he be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance."[11] Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he "owed immediate allegiance to" his tribe and not to the United States. Although "Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states," "they were alien nations, distinct political communities," according to the Court.[12]

Eastman goes on to argue that the Court erroneously decided the later Wong Kim Ark case and he even does an excellent job of explaining some basic political theory related to what the Founders understood citizenship to mean and how birthright citizenship goes against our founding republican principles! Read the whole thing as the kids like to say.

Eastman is no crank and there are other constitutional lawyers like him who think seriously about the Founding, the Fourteenth Amendment and our current immigration system and would surely agree with Mr. Trump that reforming birthright citizenship makes sense. Furthermore, as Mark Steyn notes, while Ben might sneer at the lack of specifics in the Trump white paper on immigration, the basic ideas are indeed serious and worthy of respect:

1. A nation without borders is not a nation. There must be a wall across the southern border.
2. A nation without laws is not a nation. Laws passed in accordance with our Constitutional system of government must be enforced.
3. A nation that does not serve its own citizens is not a nation. Any immigration plan must improve jobs, wages and security for all Americans.

In other words, as every functioning society understood until two generations ago, immigration has to benefit the people who are already here. Government owes a duty to its own citizens before those of the rest of the planet - no matter how cuddly and loveable they might be. The fact that it is necessary to state the obvious and that no "viable" "mainstream" candidate from either party is willing to state it is testament to how deformed contemporary western politics is. Trump may not be a "real" Republican or a "real" conservative, but most of his rivals are not "real" - period, as Carly Fiorina would say.

Ben Domenech has every right to be pro-immigration and make his case. He has every right to poke fun at the anti-immigration positions of his opponents. But to continually cast us in the worst possible light, to mock us as unworthy of serious consideration, to dismiss serious constitutional questions around birthright citizenship as out of bounds – these are not the actions of a confident and honorable opponent. Ben, you don’t have to take Trump seriously but please give the courtesy of taking his ideas seriously – many conservatives (and independents) do not share your views on immigration and want to change this country’s policies. Trump speaks to our desires.

Comments (21)

It really doesn't matter what he thinks because the West is moving steadily toward an extremely anti-immigration posture. If he thinks the Greek Coast Guard's recent attack on a migrant ship will be isolated, he's kidding himself. The Italians have half-joked about ordering their navy to actually fire live ordnance at those ships (where the Greeks merely "lanced it") A majority of the public opposes amnesty and demands real security measures; a large minority is already closer to supporting the deployment of troops with liberal use of force rules (including summarily executing cartel employees and coyotes)

It should be possible for conservatives to have a sane discussion of these matters without getting hysterical. I have learned (sadly enough) that there _are_ racist enclaves on the Internet. It's not as though racism is an accusation that never makes any sense. But Ben is throwing it around quite irresponsibly, and unfortunately I have noticed the same irresponsible, mindless use of the race card rather frequently among those in Ben's camp on the immigration issue.

Jeff, your info. on birth citizenship and the legal discussion surrounding it was new to me. Thanks for that!

It's also a sign that Domenech is rather sympathetic to the left's narrative and thought process on issues of race. Use their language, adopt their thoughts. Why would a working class white man listen to his views on other issues when he sees that caring about the plight of native white workers is a crypto-racist issue? The way it's phrased here, it doesn't even leave a lot of room for convincing native black workers since it's clear that Domenech has a soft spot for Mexicans and others more than them.

Great write-up, Jeff. I've been saying virtually the exact same thing as Mr. Eastman for years, in fact I posted an essay containing the exact same factual information re: birthright citizenship for the children of illegal aliens subject to a foreign jurisdiction at my old blog back in August 2010 I believe. In addition I have given a number of short presentations at conservative functions pointing out these facts. Now, I'm certainly no legal scholar, but I can read and it warms my heart that a serious legal scholar confirms what I have said over and over for years, right down to the conjunctive "and." Unfortunately, though, the Eric Foners of the world tend to draw to themselves the kind of attention that really matters on this particular issue.

There's a lot that can be said, but the "dirty brown people" this traitor admits are crossing the Rio Grande aren't voting for federalist principles anytime soon. This traitor is the definition of a cuckold conservative; working hard in the name of low taxes, small government, and socio-political freedoms to ensure that the future voting demographic of the United States cares nothing for these things.

I got a chuckle out of your first sentence, but I really dislike the term "cuckold conservative" for a variety of reasons. Let's not get into a big debate about that language and stick to the topic at hand.

Which brings me back to your clever comment -- it does amaze me that certain conservatives (usually of a more libertarian bent, but it runs the gamut) truly believe in their hearts that the race/ethnic make-up of a people has no bearing on how that people will absorb certain cultural ideas. They are convinced that our Anglo-Saxon (and more broadly, our European) heritage had nothing to do with the amazing success of the American (and before it, the British) experiment in self-government and "socio-political freedoms" as you put it.

While I can certainly imagine other races/ethnicities emulating and/or adopting some of our ideals, I don't for a second believe it will be easy for the them -- and it might take certain cultural traits of their own to be successful (e.g. a homogenous identity -- like the Japanese and South Koreans.) All of this is somewhat speculative but one only has to crack open a history book or read the daily paper to know that, for example, Latin America is not exactly thriving when it comes to examples of governments adopting the American Constitutional principles, much less conservative ideas around individual freedoms and republican government. Mexico has a fascinating and rich history, but one that includes despotism, socialism, a couple of revolutions and civil wars (to be fair, we had one of each!), a foreign king in charge for awhile, a war against the Catholic Church, drug wars, etc.

I really dislike the term "cuckold conservative" for a variety of reasons

Ironically, it's perfect for getting the point across to those more inclined to rhetoric. It's a conservative who'd rather watch as his own people are being screwed hard by an invading people than stand up for them.

Consider the venom that Domenech put there about conservatives who agree with Trump. Can you not imagine him horrified at the thought of a white President actually valuing native whites' jobs over opportunities for poor immigrants? Even though the truth is that Trump would vigorously protect jobs for minorities as well, it seems to cause instinctive revulsion in him at the thought of a man standing up first and foremost for his own people against the poor, huddled masses of another country desiring to immigrate here and claim a seat at the table.

You can call it vulgar, but there is really not much difference between a cuckold in the ordinary sense and a conservative politician who aids and abets the harming of his country. In fact, I think that's why men like Domenech and Erik Erickson went so crazy over the term. It accurately describes their views and is sufficiently close to the common definition of cuckold that they feel the burn.

But back to your main point, one of the things men like Domenech must learn the hard way is that culture is not a product of geography, but history, language, common experience and even dare we say it, genetics. You can take a bushman and throw him into the heart of Tokyo. Odds are his integration will never, ever happen no matter how hard he tries because at the end of the day, he's not close enough to the Japanese to understand what it means to be Japanese.

“If we had to take a million immigrants in, say Zulus, next year, or Englishmen, and put them up in Virginia, what group would be easier to assimilate and would cause less problems for the people of Virginia?”

I've had my differences with Pat over the years, but on immigration, he was always right on the money.

And the population you choose to import can directly impact things like the average intelligence of your country. So in reference to that comment, one could also ask is Virginia more likely to grow a modern economy with 1m Englishmen or 1m Zulus. Domenech would, no doubt, say that that question is Teh Racist (lulz), but it's terribly important even if they all intend to peacefully coexist.

At the same time (and Mike, please spare us the Twitter sneers), let's not overstate the awfulness of Mexico. There's a piece of legerdemain that we should not let pass unconfronted.

This, after all, is vital to the ol' Horror of Deportation argument that immigration liberals deploy every day, as if someone being deported to Mexico is comparable to Czech deportation to Siberia under Soviet rule. Gimme a break. By the standards of most human history, Mexico is a sane, wealthy and vibrant place. Even if we were to deport an illegal Venezuelan or Salvadoran to Mexico -- this is not, in the end, a horrible injustice. Heck, not a few would rather be deported to Mexico than their home country.

I've warmed to the term over the past few weeks, although the portmanteau sounds kind of silly and I avoid using that variation. It is odd to see the naivete in the immigration debate from many so-called conservatives who don't consider how difficult it is to assimilate people from widely different cultures. Once biological differences (i.e. race) are also accounted for (I don't have anything more to add than what you and MIke said), it becomes clear the only sane immigration policy is one where those taken in share as much in common with the current American population as possible and is quite limited in number.

Rhetorically, it's also good to use the traitor's language against him. By facetiously introducing "dirty brown people" as a term refering to illegal immigrants, he's trying to poison the well against immigration patriots by insinuating that it is our term for illegals (when in fact he was the one who made it up) and as you put it is not being honorable. So let him own it.

I always thought that unqualified birthright citizenship had something of it that didn't seem suited to the Founders' views of America. Now I know why - they qualified it. As did the 14th.

Other than for those given political asylum, OF COURSE repatriation / deportation of an illegal alien back to his native land is not unconscionably horrible at all - that is HOME for them. Maybe home is bad compared to here, but home is home. Those are the conditions they grew up with, they lived with for years, they know all about how to survive in.

This, after all, is vital to the ol' Horror of Deportation argument that immigration liberals deploy every day, as if someone being deported to Mexico is comparable to Czech deportation to Siberia under Soviet rule. Gimme a break

Such people ought to be reminded that the primary reason why Czech deportation to Siberia was so horrible is that they were being snatched from their own country and sent to one of the worst parts of a foreign totalitarian state. If the Czechs were to deport a Russian undesirable with almost certain knowledge of his landing in Siberia, that would still not be that bad because the Russian would be among his own kind. It would be interesting to see a liberal have to admit that that is a problem since it would imply something deeply non-equal about Russian culture (and we know cultural equality is a given, right?...)

Jeffrey S,the amazing success of the American experiment in self-government

What amazing success? Do you count abolishment of man an amazing success?
In 2015, marriage is abolished in USA. Living babies are dissected and organs put to sale. The self-governing people are running scared of queers and eunuchs. That never happened even in Soviet Union.

Indeed, if the Christians would not stop the abolishment of man, then one can only pray for 'dirty brown people' to interfere before the Controllers finally put to rest this "experiment in self-government".

GW,how difficult it is to assimilate people from widely different cultures.

Assimilate people into what? The pro-life culture or the pro-choice culture?
If you are pro-life, you must be careful that you or your children do not get assimilated into the pro-choice culture.

Indeed, such sentiments are now entirely and hopelessly out of date. Here you are (if you are pro-life) on verge of being persecuted because you have not assimilated into the pro-choice culture and you are worried about foreigners being assimilated or not!!.

Mike T,
It might be better if you call those against national sovereignty by the proper name --Libertarians. That they were ever confounded with conservatives speaks of the major confusion in the conservatism that Kirk warned about long ago.

They were never shy and propounded their views from roof-tops. That there shall be open borders. Lose the We. That nations are at best administrative (in)conveniences. That there is no Society.

But the conservatives preferred lower taxes and be pro-business and anti-union to the explicit declaration of war against the State.

You're right about the Soviet Union, Bedarz. In the Soviet Union they faced far worse fates. I think the average Soviet political prisoner would have been slack-jawed at how meekly American conservatives accept what is happening to them, since the consequences are so small by comparison.

Loss of employment and maybe a few years in prison in very extreme cases? How about being sent to a concentration camp for merely uttering words of disagreement or because your kid misinterpreted what you said and reported you?

Verbally punch the next SJW you meet in the face. It'll do both of you some good. In my experience, they don't respond well to someone who makes it clear that they will go down fighting.

Lawrence Auster had achieved a certain detachment from what he called America 2.0. Something of this sort is wanted otherwise identification with the enemy, leading to fraternization, proceeds to complete assimilation into the enemy culture.

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